Retaliation/Reprisal Claims

What is retaliation or reprisal, and how do I prove it?

Retaliation is an unfair practice by your employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against you because you have opposed any practices forbidden by the Washington Law Against Discrimination (WLAD), or because you have filed a charge, testified, or assisted in any proceeding under the WLAD.

To prove a claim of retaliation, you must show each of the following elements:1) you belong to a protected class (i.e. women); 2) you are qualified for the employment position or performing substantially equal work; 3) you experienced an adverse employment decision including termination or denial of promotion; and 4) your employer selected a replacement or promoted person from outside the protected class.

For what reasons can I be fired?

You can be fired for any reason that is not discriminatory such as poor work performance, unexcused or excessive absences, frequent tardiness and violating a company policy. If you were hired as an "at-will" employee you can be fired at anytime for any legitimate reason.

What is "protected conduct"?

Protected conduct includes filing a charge of discrimination or harassment, threatening to file a charge of discrimination or harassment, or assisting someone in filing a charge of sexual harassment or discrimination. A person who does any of these things is often called a "whistleblower."

How do I show that my legally protected conduct led to my discharge?

Any evidence that your employer took action against you because of your protected conduct will help to prove your case. Usually, you will not find direct evidence of retaliation; however, circumstantial evidence may help prove a link between your protected conduct and your termination. At the very least, you should be able to show close temporal proximity (a close relationship in time) between your protected conduct and negative employment action. Additional evidence may be helpful such as your employer's attitude toward you, treatment of you, or any statements your employer may have made to you about your complaint or report.

Did my employer retaliate against me by taking an adverse action?

Anything that negatively affects you or your working environment such as termination or unwarranted disciplinary action is an adverse employment action. Whether or not that adverse action was retaliatory is dependant on the specific circumstances of each case and the evidence in support of a belief of retaliation.

Must I show that my employer knew about my "protected conduct"?

Yes, you should be able to show that your employer knew about your protected conduct before taking an adverse employment action against you.

What evidence must I show to prove that my "protected conduct" led to my being fired?

As stated before, direct evidence is difficult to come by considering that most employers will not openly admit to discrimination or retaliatory conduct. Circumstantial evidence may help you prove that your protected conduct led to your discharge. For example, if you believe that your supervisor treated you differently after learning of your protected conduct. This change in treatment by a supervisor may serve as presumption of retaliation.

I've just received a warning from my employer, and I suspect I will be fired soon. What should I do?

If you receive a warning from your employer, your first instinct may be to panic or even become angry. Depending on the circumstances, you should remain calm, especially since your employer may continue monitoring your work. Generally, you should begin gathering information: clarify the warning if necessary by asking your employer, get a copy of company policy on warnings/dismissals to ensure that your employer is following its own policies, talk to trusted co-workers to see if they have any insights into what they have observed in the workplace, keep track of the date/time of interactions with your employer as well as any documents that may be relevant, and, most importantly, consider whether the warning may have something to do with sex discrimination or complaining about sex discrimination. Ask yourself if your employer's warning comes on the heels of your confronting the company about sex discrimination. If so, there may be more to the warning than meets the eye.

What can I do to protect any legal rights I might have before leaving my job?

The easiest way to protect your legal rights before leaving your job is to document everything. Even if you initially feel as if your firing was not retaliatory or discriminatory, cover all of your bases by asking for the termination letter in writing, and saving all written warning letters. To aid in any potential claims you may have against your employer, document the dates of any decisions or actions affecting your employment, including salary or benefit increases/decreases, recommendations, and reprimands.

I am being forced to leave my job. But before I go, my employer requires that I sign a document promising not to sue. Is that legal?

It is not illegal for your employer to get you to sign a waiver of your right to sue as part of a severance agreement. Be conscious that you are taking a risk if you sign a waiver, as they are generally enforceable. If you have any doubts about your employer's reasons for firing you, especially if you think your employer may be retaliating or discriminating against you, you should consult with an attorney before signing anything.

What could my employer do to deny my allegations, and how do I respond to their denials?

If you've established an initial presumption of discrimination your employer will have an opportunity to demonstrate that it fired you for legitimate, non-discriminatory reasons. Ultimately, you must present evidence to convince the court or the jury that the given reasons are really pretext and that the true cause of your termination was because you are a woman. You must show that gender was a "substantial factor" in your termination.

Does it matter when the discrimination occurred?

Washington enforces a very strict time limit on when a claim of sex discrimination can be filed. You must file your complaint with the Commission within six months of the date of your employer's discriminatory conduct. Under federal law, however, you have three hundred (300) days to file a claim with the Equal Employment Opportunity Commission (EEOC). If you choose to sue in the courts with a private attorney you have roughly three years to file the claim; however, the sooner you talk to someone at the state or federal agency or a private attorney the better.

What options do I have if I my employer has fewer than 8 employees?

Unfortunately, under Washington law, if your employer has fewer than eight (8) employees, your legal options are severely limited. Employers with fewer than eight (8) employees are exempt from the WLAD. The Washington Supreme Court, however, found that the state has established a clear public policy against discrimination based on sex in both statute and judicial opinions. As a result, if you believe that you have been fired because of sex discrimination, you may have a legitimate cause of action for the common-law tort of wrongful discharge even if your employer has less than eight (8) employees.

If I prove my wrongful termination claim, what kind of remedies am I entitled to?

You may be entitled to injunctive relief or monetary damages. For more information, please see Remedies.